51 F.

3d 265

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
Nadine Bouyer COBB, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human
Services,
Defendant-Appellee.
No. 94-1924.

United States Court of Appeals,

Fourth Circuit.
Argued Jan. 30, 1995.
Decided: April 5, 1995.

ARGUED: John Simon Whitelaw, APPALACHIAN RESEARCH AND

DEFENSE FUND, INC., Beckley, West Virginia, for Appellant. Lori
Riye Karimoto, Office of the General Counsel, DEPARTMENT OF
HEALTH AND HUMAN SERVICES, Philadelphia, Pennsylvania, for
Appellee. ON BRIEF: Charlotte Hardnett, Chief Counsel, Region III,
Dorothea J. Lundelius, Division Chief, Thomas S. Inman, Assistant
Regional Counsel, Office of the General Counsel, DEPARTMENT OF
HEALTH AND HUMAN SERVICES, Philadelphia; Pennsylvania;
Rebecca A. Betts, United States Attorney, Stephen M. Horn, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Before ERVIN, Chief Judge, MOTZ, Circuit Judge, and PHILLIPS,
Senior Circuit Judge.
OPINION
PER CURIAM:

Nadine Cobb appeals from the district court's order affirming the Secretary of
Health and Human Service's denial of Supplemental Security Income ("SSI")
benefits under Title XVI of the Social Security Act. Cobb asserts that the
Secretary's decision is not supported by substantial evidence and that relief
should be provided under the Act. The Administrative Law Judge (ALJ) who
conducted the final administrative review of this case in May 1992 was in the
best position to evaluate the contradictory evidence presented about Cobb's
physical and mental impairments. The Secretary based her conclusion on the
findings of the ALJ, findings that we hold are supported by substantial
evidence. Cobb also challenges the denial of benefits based on inadequate
instructions that the ALJ provided to a vocational expert who testified as to
Cobb's ability to find gainful employment. In posing a hypothetical to the
expert, the ALJ fairly considered the medical testimony provided by both
parties. For the reasons set forth below, we affirm the judgment of the district
court.

I.
2

Cobb claims she suffers from physical and psychological injuries sustained in a
series of automobile accidents during the 1980s. A 1988 accident resulted in
broken bones in Cobb's face, the most serious of which was the fracture of her
left eye socket. She underwent two surgical procedures in order to repair the
damaged left orbit. In 1989, Cobb was involved in another accident that left her
with substantial injuries to her neck and back.

Cobb began seeing a neurologist, Dr. William Merva, on a regular basis after
the 1989 automobile accident. Between November 1989 and April 1990, Dr.
Merva evaluated Cobb's condition on seven different occasions. On each of
Cobb's visits, the doctor took substantial notes--all of which were included as
evidence at the hearing before the ALJ. Although Cobb's visits to Dr. Merva
were fairly regular during that six month period, there is no indication in the
record that Dr. Merva examined Cobb again until February 4, 1991, ten months
after her last visit. Dr. Merva's notes from the examination of February 4, as
well as those taken five weeks later during a follow-up visit, reveal a significant
improvement in Cobb's condition. Although Cobb had not been "on any
medication for sometime," she was not experiencing much pain in her arms in
early February. Dr. Merva's summary of Cobb's condition on March 13, was
similarly positive. He wrote that "[t]he patient is doing very well on 100 mg.
Imipramine." Additionally, Dr. Merva noted that Cobb was sleeping more
easily, even though she continued to experience neck pain.

Despite the two isolated examinations in February and March of 1991, Cobb

had not been under Dr. Merva's regular care for nearly a year when the
physician offered the following opinion in April 1991 about his patient's ability
to hold a job:
5 Nadine Bouyer Cobb has been under my care for a cervical sprain with neck
Ms.
pain and headaches. She has been unable to hold gainful employment since at least
January of 1991, and will continue to be unable to work for at least 12 months.
6

Dr. Merva's blanket determination that Cobb would be unable to work for
another year was not consistent with the positive remarks that he had made
about Cobb's condition in February and March. Moreover, the degree to which
Cobb was "under Dr. Merva's care" is questionable, because the doctor had not
evaluated Cobb's condition for a ten month period prior to February 4.
Moreover, the record indicates that after March 13, Dr. Merva never treated
Cobb again.

Dr. Merva's opinion concerning the seriousness of Cobb's injuries is

contradicted by the assessments of other specialists who examined Cobb within
days of the 1989 accident. Dr. David Santrock, an orthopedic surgeon, noted
two days after the automobile injury that "Cobb had full range of motion of the
cervical spine, without pain, and was asymptomatic." Although an MRI
indicated a bulge in one of her vertebrae, neurosurgeon Arthur Gindin
determined that there was no nerve damage. Dr. Gindin was unable to
determine the cause of Cobb's pain in her lower extremities.

In addition to addressing these physical disabilities, the hearings before the ALJ
also focused on Cobb's psychological problems. In December 1989 and again
in January 1990, Cobb was examined by clinical psychologist Constantine
Demopoulos, who had been recommended by Cobb's attorney. An intelligence
test revealed that Cobb has an IQ of 79, which places her on the borderline of
being mentally retarded. Demopoulos' ultimate conclusion was that Cobb
suffered from psychoneurotic disorder, was deeply depressed, and was a poor
candidate for employment. At her attorney's behest, Cobb also saw psychiatrist
Riaz Uddin Riaz, whose prognosis mirrored that offered by Demopoulos. The
diagnoses provided by the two specialists were identical--generalized anxiety
disorder, severe, chronic; major depression, severe, chronic; and borderline
range of intelligence.

Riaz's and Demopoulos' evaluations of Cobb's condition were markedly more

pessimistic than were the evaluations of psychiatrists Powell and Andrews who
were brought in as consultants by the Department of Health and Human
Services. Powell noted that Cobb had few complaints other than the fact that

she heard voices in her head three to four times a week. Cobb was alert,
cooperative, and talkative in her meeting with Powell, so much so that Powell's
only finding was that Cobb may have been under the influence of alcohol.
Powell's overall conclusion was that it was "doubtful" that Cobb has a
psychiatric diagnosis. No mental problems were evident in Powell's psychiatric
evaluation. He assessed Cobb's ability to perform workrelated activities as
"good" in almost all areas. Dr. Andrews conducted another IQ test which
resulted in a score of 77--a result that again placed her in the borderline range
of mental retardation. In his opinion, any depression that may have been
evidenced by Cobb's behavior, however, "d[id] not reach a degree of clinical
significance in terms of diagnostic criteria."
II.
A.
10

Our review of a denial of SSI benefits is limited to a determination of whether

the Secretary's decision is supported by substantial evidence and whether the
correct law was applied. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990);
42 U.S.C. Sec. 405(g) (1988) ("[t]he findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive"). Substantial evidence
means "such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966), we stated that
substantial evidence "consists of more than a mere scintilla of evidence but may
be somewhat less than a preponderance." Consistent with the deference that
this court affords the Secretary, we do not weigh evidence or assess the
credibility of witnesses. Hays, 907 F.2d at 1456. The Secretary, not the courts,
has the ultimate responsibility for "making findings of fact and resolv[ing]
conflicts in the evidence." Id.; see also Wilkins v. Secretary, DHHS, 953 F.2d
93, 96 (4th Cir.1991) (en banc) (quoting Huckabee v. Richardson, 468 F.2d
1380, 1381 (4th Cir.1972)) (" 'Reviewing courts are restricted to the
administrative record in performing their limited function of determining
whether the Secretary's decision is supported by substantial evidence.' ")

11

A treating physician's testimony is entitled to great weight and may be

disregarded only if persuasive contradictory evidence exists. Coffman v.
Bowen, 829 F.2d 514, 517-18 (4th Cir.1987). We have reversed judgments
entered in favor of the Secretary, because the treating physicians' opinions had
been ignored despite the lack of "persuasive contradictory evidence." Id. at 518;
Wilkins, 953 F.2d at 96. In Coffman, the Secretary failed to give credit to a
physician's conclusory statement about his patient's inability to work. The

treating physician's opinion was supported by findings from three other doctors
and, unlike this case, the Secretary never received testimony from a doctor with
a contrary opinion. Similarly, in Wilkins we reversed the Secretary's denial of
benefits, but again, no expert medical evidence had been offered to contradict
the treating physician's assessment of the claimant's disabilities. Id. The
Wilkins court was further disposed towards adopting the position taken by the
treating physician since he was only "offer[ing] a retrospective opinion on the
past extent of impairment." Id.
12

Dr. Merva's ultimate conclusion--that Cobb would be unable to work for an

additional twelve months--is not the type of opinion that is entitled to "great
weight" under Wilkins and Coffman. Although Coffman appears to have
applied the so-called attending physicians rule in its strictest form, holding that
the treating physician's opinion be disregarded only if there exists contradictory
evidence, Coffman, 829 F.2d at 517, Wilkins made it clear that it is "a treating
physician's opinion ... concerning the extent of past impairment " that may not
be rejected in the absence of persuasive contradictory evidence. Wilkins, 953
F.2d at 96 (emphasis added). Dr. Merva had not treated Cobb on a continuous
basis, his opinion related to Cobb's future abilities rather than to her past
condition, and the ALJ was presented with substantial contradictory expert
testimony. Each of these factors contributes to our holding that the ALJ acted
properly in choosing not to adopt the position taken by Cobb's treating
physician. While Dr. Merva's reports chronicle Cobb's complaints, his medical
conclusions are no more powerful than those made by Doctors Santrock and
Gindin.

13

Resolving conflicting testimony is the Secretary's responsibility, not the task of

a reviewing court. Hays, 907 F.2d at 1456. In this instance, although Cobb had
a strong advocate in Dr. Merva, it was within the Secretary's discretion to
determine that the testimony of Doctors Santrock, Gindin, Powell and Andrews
undermined the efficacy of Dr. Merva's conclusions.

B.
14

We also find no merit to Cobb's claim that the ALJ failed to account
sufficiently for all of Cobb's maladies in posing a hypothetical to the vocational
expert. "The purpose of bringing in a vocational expert is to assist the ALJ in
determining whether there is work available in the national economy which this
particular claimant can perform." Walker v. Bowen, 889 F.2d 47, 50 (4th
Cir.1989). In order for the expert's opinion to be helpful, it must be in response
to a hypothetical which fairly sets out the claimant's impairments. Id. The
hypothetical posed by the ALJ reflected enough of Cobb's characteristics to

afford the vocational expert a meaningful basis on which to formulate an

opinion. The ALJ asked:
15
Assume
an individual the claimant's age, a high school education with literacy and
basic mathematical skills, no past work experience and a residual functional capacity
for work of a light exertional level with, although I find it's somewhat inconsistent
with her educational background, a, [sic] at least perhaps a current functioning,
mildly limited intellectual functional capacity of the upper borderline level that
would perhaps preclude work involving the acquisition or utilization of significant
mental skills. And the mild situational depression that would involve, that would
preclude only work involving a great deal of stress. Are there any jobs in the
national economy that exist in significant numbers that a, an individual with that age,
education, vocational profile and that residual functional capacity could perform and
if so can you name them and give the approximate numbers?
16

(emphasis added).

17

The ALJ's statement of Cobb's mental and emotional condition achieves a

balance between the testimony offered by Demopoulos and Dr. Riaz, on the
one hand, and Dr. Powell and Dr. Andrews, on the other. "Limited intellectual
capacity of the upper borderline level" is consistent with the results of the
intelligence tests administered by both Demopoulos and Andrews. Riaz's and
Demopoulos' findings that Cobb suffered from psychoneurotic disorder did not
match the assessment of Powell and Andrews who found Cobb to be fairly well
adjusted. Andrews also concluded that any depression Cobb was experiencing
did not rise to a clinically significant level. The hypothetical was not skewed in
favor of either medical opinion. The vocational expert received an accurate
assessment of Cobb's condition, one based on the substantial evidence that the
ALJ had received. As a result, the ultimate opinion offered by the expert--that
Cobb could perform a certain range of light work--was adequately supported by
the record.

III.
18

Prior to this dispute reaching federal district court, there had been no less than
five occasions on which an ALJ had considered Cobb's claim. The ALJ who
denied the claim on May 28, 1992, held two independent evidentiary hearings
in which neurosurgeons, orthopedists, psychologists, and psychiatrists testified
as to Cobb's condition. We find that the Secretary's denial of benefits is
supported by substantial evidence and that the hypothetical posed to the
vocational expert properly took into account all aspects of Cobb's condition.
The judgment of the district court is accordingly

19

AFFIRMED..